Sunday, August 12, 2012

Protest Accountability: Mechanisms to Improve Performance

Protests are back in the news, although they never really
left. I have been writing about this issue for some time (here
and here),
but the problem has only exploded in the last five years with the economic
implosion, and now sequestration and budgeting Armageddon possible on the
horizon.

A recent report
from IBM’s Center for the Business of Government also highlight similar issues,
but some of the recommendations made in the report are either not realistic or
have no chance at implementation.

The current state of the acquisition workforce, and I am
including the program office who are (or should) be evaluating a proposal,
simply will not allow many of these recommendations to see the light of day.

The report should have focused on the only issues that need
leadership support, which is to create confidence in the contract award
decision, and to ensure industry understands the requirements, evaluation
criteria, and why they did not win a contract.

The critical components that need attention:

Requirements

Poor requirements lead to contract failures, and protests of
course. Garbage in equals garbage out, and that cannot be truer when it comes
to procurements and subsequent contract award decisions.

Bundled, complex requirements, with hundreds of moving
parts, combined with evaluation criteria that do not make sense, is a formula
for almost automatic protests.

This is where performance-based contracting comes into play.
Focusing on objectives and needed outcomes is where government should be,
allowing industry to help solve problems and achieve the ever-illusive outcome:
innovation. Instead, the current paradigm is stuck in a quagmire of government’s need to be overly-prescriptive, leading to confusion and poor
requirements since industry has the edge in technological knowledge and
capabilities.

Source selections are currently treated as a chore; an
unwelcome ancillary duty by government personnel who do not have time for more
taskings and who are under pressure from their respective leadership to perform
other duties. Further, many senior leaders do not allow their personnel the
flexibility needed to focus on a source selection, instead treating it with
lesser importance than their subordinate’s day-to-day jobs.

The report makes some good recommendations in this area, but
it is leadership that needs change to help them understand the importance of
making sound business decisions through effective support of source selections.

I cannot count how many times I have supported a source
selection in my consulting career where managers refuse to allow their
personnel to focus on a source selection properly. The result is massive
frustration and confusion, by both offerors and the evaluation team.

Another significant issue is training, as many program
managers are simply not aware of proper evaluation processes, especially when
it comes to documentation. Disturbingly, I have also seen many contract
specialists also lack these fundamentals.

It is simply a fact that if a contract award decision is
transparent and properly documented, this normally leads to confidence in a
contract award decision by those in leadership charged to ultimately make the
contract award decision, and hopefully industry.

A well-documented source selection, that has followed
transparent and proper procedures, combined with effective debriefings, will go
a long way to offsetting protest activity.

Transparency

This should include redacted source selection plans and
documentation for the losing bidder, which incudes legal and peer review.

The trust issue, as the report mentions, is simply
deteriorating to the point of frightening proportions. This should start as
early in the acquisition process as possible, but again the fear-factor
prevents government from collaborating with industry effectively, at the
detriment of the requirement and the ultimate contract award.

Government personnel need to understand that if they do
their jobs properly, protests should be sour grapes. It is the risk-aversion
here that is a major issue.

Nonetheless, the current state of affairs when it comes to
protests is only going to worsen unless accountability is brought into the
fray.

Looking at the recent Government Accountability Office (GAO)
report on protests, it is
hard to not think that protests are out of control. Here is where I strongly
agree with IBM’s report, as I have been an advocate of protest accountability
for some time. How can one argue that some protests are not simply frivolous? I
know of a company, an incumbent on a contract that lost a recompete, who
admitted filing a frivolous protest to bilk the government for another three
months of revenue while GAO made the decision. The basis for the protest
bordered on absurd, but how often does that happen? More often than you think.
It is a business decision no doubt, but only at the expense of the taxpayers
and the mission.

Protests are disruptive, and firms need to be held
accountable for reimbursing the government for losing protest after protest.
Further, this is a demonstration of a bad actor, and should also be included in
a firm’s past performance rating.

Conversely, firms should automatically be compensated for
protests fees should they be upheld. It is a two-way street, and needs to be
treated as such.

Protests are a fundamental right by a firm to correct a
deficiency by the government. However, the data indicate that this right is
being abused. Let’s bring this situation under control, and move forward.

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About Me

Mr. Gracia is President and CEO of Seville Government Consulting. He is an experienced consultant in government contracting and procurement processes, focusing on small business and government clients. He has 20 years of professional experience providing consulting support for the acquisition, training, and management of services and technology in the government and commercial sector including numerous DoD and Federal civilian agencies. He is a Navy veteran, actively supporting military organizations such as the USO, Soldier's Angels, and serving as CFO for Cigars for Warriors.